On June 24, the Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC) released a final regulation establishing disincentives for certain healthcare providers determined to have committed information blocking. The regulation finalizes most of the provisions in the October 2023 proposed rule. It becomes effective 30 days after its July 3, 2024, publication in the Federal Register.
As background, information blocking occurs when a health information technology (IT) vendor, network or healthcare provider acts in a way that prevents or impedes the exchange of certain electronic health information. The prohibition on blocking health information includes nuanced requirements and exceptions.
The information blocking prohibition has been in effect for a while, but until now, no penalties were established for healthcare providers that the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) determines to have committed information blocking.
In the final rule, CMS and ONC finalized the following disincentives, which use certain existing Medicare quality reporting programs to impose varying financial consequences on providers found to have committed information blocking:
- A clinician will not be a meaningful EHR user under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS) in a performance period if OIG refers, during the calendar year of the performance period, a determination that the clinician committed information blocking. Clinicians who are subject to MIPS and are required to report on the Promoting Interoperability performance category would receive a “zero” score for that performance category. Because the Promoting Interoperability category is 25% of the total MIPS score, the clinician could only earn a maximum total MIPS score of 75 points (assuming perfect scores in the remaining categories), which could result in the clinician receiving a negative payment adjustment.
- CMS has modified its policy for this disincentive to clarify that if an individual eligible clinician is found to have committed information blocking and is referred to CMS, the disincentive under the MIPS Promoting Interoperability performance category will only apply to the individual, even if they report as part of a group.
- For the Medicare Shared Savings Program (MSSP), CMS finalized its proposal that a healthcare provider that is an accountable care organization (ACO) or part of an ACO, if determined by OIG to have committed information blocking, would be barred from participating in the MSSP for at least one year. This may result in a healthcare provider being removed from an ACO or prevented from joining an ACO. Where a healthcare provider is an ACO, this would prevent the ACO’s participation in MSSP for that time period. Suspension from the MSSP would result in the ACO losing out on any shared savings revenue (potentially millions of dollars) that it otherwise would have earned, among other potential consequences. HHS will consider the relevant facts and circumstances before applying a disincentive under the MSSP, but this level of discretion will not apply to other providers and disincentives.
Despite requests from several healthcare organizations, including the Academy, the final rule does not create an appeal process for penalized entities. CMS and ONC stated that they chose not to create a single appeals process because it “may conflict with, or duplicate, administrative review or appeals processes available under existing authorities.” Providers will have to go through the existing appeals process for their particular Medicare program to challenge the imposition of a disincentive.
